On July 1, 1987, then-Senate Judiciary Committee chairman Joe Biden met with President Ronald Reagan to discuss the replacement of retiring Supreme Court justice Lewis Powell. Upon seeing Robert Bork’s name on the list of potential nominees, Biden warned Reagan, “If you nominate him, you’ll have trouble on your hands.” Undeterred, the president announced Bork’s nomination that same day. A mere 40 minutes later, Senator Ted Kennedy stood on the Senate floor, denouncing “Robert Bork’s America,” the opening salvo in a nomination battle that would ultimately defeat Bork, elevate Justice Anthony Kennedy instead, and forever change the Supreme Court and the face of American politics.
Thirty-six years later, the most acrimonious high-court nomination in New York’s history portends a similar tectonic shift for the state’s Court of Appeals. Like Reagan, Governor Kathy Hochul shook off progressives’ warnings against LaSalle’s nomination, only to be encircled by opposition fierce enough to thrust the state into constitutional upheaval. Now, as Republicans in the State Senate have sued their Democratic counterparts to give LaSalle an up-or-down vote, the battle will mark the trajectory of Hochul’s early term. But beyond the immediate question of whether LaSalle will take the helm of New York’s court system, his nomination fight has important implications for judicial independence, the rule of law, and the future of state politics.
In 1977, New York voters approved a constitutional amendment to replace statewide elections for Court of Appeals judges with the current system, which requires a Commission on Judicial Nomination to vet qualified candidates and submit a list of names to the governor, who appoints one with the Senate’s “advice and consent.” As former chief judge and LaSalle supporter Sol Wachtler noted in a recent op-ed, elections proved unsuitable in 1974, when Harold A. Stevens, serving an interim term on the court as its first black judge, could not win either the Democratic primary or the general election, despite earning the endorsements of the Liberal, Conservative, and Republican parties. It’s therefore ironic that LaSalle has endured intense ideological opposition in a process intended to reduce the influence of politics and open greater possibilities for meritorious minority candidates.
Before Hochul announced her selection from the commission’s list of seven names in December, a coalition of over 100 progressive groups, unions, and law professors admonished her not to nominate LaSalle, whom they labeled an “unacceptable,” “activist conservative” who would immediately face organized opposition. The prospect of his becoming the first Latino chief judge mattered little to them, despite Hochul’s attempt to respond to yearslong calls for greater Latino representation in New York’s courts. What mattered more was his service as a Suffolk County prosecutor, and that, in the roughly 5,000 cases in which he participated, he occasionally sided with the “wrong” parties: a large corporation against union representatives, crisis pregnancy centers against the state attorney general, the prosecution over criminal defendants.
Amid this firestorm, progressive state senators soon began balking, and quickly reached the dozen needed to force Hochul to rely on Republican votes. Majority Leader Andrea Stewart-Cousins allowed a party-line resolution last month to add four seats to the Judiciary Committee, stacking it with Democrats already opposed to LaSalle’s nomination.
Despite what appeared to be a foregone conclusion, on January 18, LaSalle testified before the now 19-member committee for nearly five hours. In a stunningly frank opening statement, the justice laid bare his political beliefs. While claiming that he could not prejudge cases, he remarked, “I personally strongly believe in a woman’s right to make her own reproductive decisions.” Following up on another source of criticism, he continued, “I strongly believe in the value of unions and of protecting the right to organize,” even recounting “walking the picket lines” as a boy alongside members of his family. Left underexamined throughout the charged nomination process, writes Brian Ginsberg, a litigator who has argued before the Court of Appeals and served previously as an assistant state solicitor general, were important jurisprudential questions—such as LaSalle’s views on the types of cases that the Court should accept for review, or when an individual judge should grant leave to a criminal defendant’s petition for appeal.
Minutes after they finished questioning LaSalle, Democrats on the committee rejected him in a 10-9 vote, and—a first in state history—refused to submit his nomination to the full Senate for a vote. Progressive committee members, led by Chairman Brad Hoylman-Sigal and backed by Stewart-Cousins, quickly claimed that the rejection ended LaSalle’s nomination. The state constitution allows the Senate to adopt its own rules and procedures, they argue, and those same rules allow the judiciary committee’s rejection to obviate the need for a floor vote.
That left Hochul at an impasse: sue the Senate to force a floor vote, have Republicans file instead, or withdraw LaSalle’s nomination. Today, some three weeks after the committee’s rejection in which Hochul refused to withdraw LaSalle’s nomination, State Senate Republicans filed suit against Stewart-Cousins and the Democratic members of the judiciary committee. Legal arguments in favor of a floor vote rest on Article VI, Section 2 of the state constitution, which says that the governor shall appoint a nominee with the “advice and consent of the senate,” suggesting LaSalle must get a vote from the whole body, not merely a subgroup of it. Some historical practice supports this contention. Current Court of Appeals judge Jenny Rivera failed to receive the committee’s endorsement in 2013 because of Republican opposition, yet her nomination went to the full Senate, where she was confirmed. “This appointment goes to the Judiciary Committee and then to the floor. . . .The law is crystal clear,” said former chief judge Jonathan Lippmann, a LaSalle supporter who has denounced what he calls an unfair process. Ginsberg cautions that the precise question is largely unexplored and has yet to be litigated, but he writes that “textual clues throughout the Constitution indicate that ‘the senate’ means the whole Senate, rather than a committee thereof.” Several references to the Senate are coherent only when the term is understood to mean the full body, he contends.
To progressives, the lawsuit represents a full-on attack on a body of a co-equal branch of government, and a violation of the separation of powers generally. To Republicans and Hochul’s supporters, the Senate cannot evade its constitutional obligations. To the Court of Appeals as an institution, the suit could cause major headaches. All three of the court’s liberals applied for the chief judgeship without making the commission’s list, while Judge Anthony Cannataro was included on it. Assuming the judges can figure out how to navigate the tortuous decision of whether to recuse themselves and won’t deadlock, any decision they render is bound to seem politically supercharged. And even if he gets a full Senate vote, LaSalle would need 32 votes to win confirmation; Republicans hold 21 seats to Democrats’ 42, meaning that Hochul could win the day by carrying only 11 senators from her own party. By the time of the committee’s rejection, however, a total of 25 Democrats publicly opposed his nomination, with reports that seven more were likely to join them—enough to sink the nomination outright.
Just as Bork’s nomination came to mark the tone of future Supreme Court nominations, so will LaSalle’s likely define the vetting process for forthcoming Court of Appeals judges. Governors will think twice before making nominations and may not always use their discretion to select the most capable individuals. Nominees will feel pressure to demonstrate their progressive bona fides by making blatantly political statements in their confirmation hearings. New Yorkers have many reasons to be concerned.
Start with the uneven interpretation of the justice’s record as a purported conservative. After conducting a closer and broader review of his decisions, Albany Law School professor Vincent Bonventre, a self-acknowledged liberal, wrote that the record “hardly shows Judge LaSalle to be a conservative ideologue.” For example, in joining a now-infamous opinion that union representatives acting in their individual capacities (an allegation the court accepts as true when deciding motions to dismiss on the pleadings) could be held liable for defamatory statements against Cablevision, LaSalle joined a 3–1 majority to interpret a 1951 Court of Appeals case as binding precedent. The defendants would, moreover, be shielded from liability if they successfully showed that they were acting as union representatives when they made the statements.
While some dispute whether the precedent should have applied, even the lone partially dissenting judge admitted that it was indeed possible for a union representative to be found individually liable for defamation, but “only if the individual was acting with personal animosity and/or beyond his or her role as a union official.” Thus, no judge favored what many progressives really want: granting individuals blanket protection against defamation claims from an employer merely because the individuals happen to represent a union. For all the consternation about this decision, in the eight years since, no Democratic senator has even proposed legislation to fix the supposedly glaring error.
Bonventre’s analysis shows that in another unanimous opinion—one LaSalle actually authored—the Appellate Division overturned a trial court decision siding with New York City against a firefighter ordered to repay his retirement disability benefits, on the grounds that he didn’t apply for them when he was first awarded his benefits. LaSalle’s decision held that the lack of any application processes or procedures, coupled with a statutory presumption for the validity of such payments, meant that the firefighter was eligible for the benefit payments.
The one-sided way that senators and their allies have treated LaSalle’s record will doubtless deter some prospective high-court candidates from applying in the future. Ginsberg fears that at least some highly meritorious candidates won’t “wish to run the political gauntlet that evidently now comes along with the nomination and confirmation process.” That’s especially worrying for the position of chief judge, which oversees a sprawling $3 billion court system and some 3,000 judges. The ability to attract the most capable individuals is paramount to the efficient and effective administration of justice, something in the interests of all New Yorkers.
Equally troubling is that the opposition to LaSalle stems from the parties he decided in favor of or against, not necessarily his legal reasoning or the strength of the litigants’ cases. Prioritizing “the needs of the vulnerable” would be an inappropriate mission for judges duty-bound to decide cases fairly, impartially, and according to the law. New Yorkers attuned to think of judicial decision-making from the simple perspective of who wins will begin to doubt judges’ impartiality, corroding the respect for the rule of law and procedural justice that underlies the court’s authority.
The nomination thus raises serious questions about judicial independence. In essentially eliminating the line between law and politics, LaSalle’s foes risk upsetting the judiciary’s role in New York’s constitutional order. Particularly disturbing, writes Ginsberg, is the political treatment of the Court of Appeals as a “counterweight” to the perceived conservatism of the Supreme Court—as an entity “standing up” for causes adversely affected by the conservative majority on the nation’s highest court. What’s more, there’s little reason why LaSalle’s detractors can’t achieve their goals legislatively; after all, Democrats enjoy supermajorities in both legislative chambers.
Following his nomination hearing, Bork received the consideration of the full Senate, where he was rejected by a 58–42 vote. The country has never been the same. But if that fateful nomination 36 years ago proves instructive, for New York State, the stakes are higher still.
Photo: Valerii Evlakhov/iStock